Public Protector audit outcomes regress due to flawed appointment of lawyers
The Public Protector’s audit outcomes for the financial year ended March 2023 have regressed from a clean audit to an unqualified outcome.
The entity’s annual report and financial statements tabled in parliament on Monday show the regression is due to irregular expenditure related to the appointment of lawyers before public protector advocate Busisiwe Mkhwebane’s suspension.
The institution incurred irregular expenditure of R18.9m as a proper tender process was not followed in the procurement of legal services.
According to the report, the PPSA appointed a legal service provider from a panel of attorneys in respect of around 25 cases over the past four years, where more than R60m was paid.
During the audit process the auditor-general detected irregular expenditure as a result of unfair work allocation related to consultancy fees (legal fees) to the amount of R18.6m , which led to the adjustments in the annual financial statements, reads the report.
“Irregular expenditure of R18,987, 533 was incurred, as a proper tender process was not followed.”
The AG found that some of the tenders which achieved the minimum qualifying score for functionality criteria were not evaluated further in accordance with the 2017 Preferential Procurement Regulations.
“The preference point system was not applied in some of the procurement of goods and services as required by section 2(a) of the Preferential Procurement Policy Framework Act (PPPFA),” said the AG.
The institution’s clean audits for three consecutive years preceding the period under review were highlights of Mkhwebane’s tenure in office.
Public Protector CEO Thandi Sibanyoni said it was regrettable the clean audit outcome previously achieved has regressed to an unqualified audit opinion with one significant finding regarding noncompliance with legislation when it came to the procurement of legal services.
Sibanyoni said in July 2022, during Section 194 Enquiry proceedings, it became publicly known that the allocation of work to legal firms on the panel was not processed on a rotational basis.
“However, at this stage we had already begun a process to review governance in the legal and finance units,” she said.
“We subsequently investigated the matter and brought it to the attention of the AG at the onset of the regularity audit of the institution for the year ended March 31, 2023.”
This, Sibanyoni said, resulted in the institution incurring irregular expenditure of R18.9m.
Subsequent to the testimony that revealed the shortcomings, a further assessment of the process followed to select legal firms from the panel was conducted.
The assessment revealed most of the expenditure incurred in the year under review related to firms that were selected using inadequate processes in previous financial years, she said.
In the report, deputy public protector advocate Kholeka Gcaleka, who has been acting in Mkhwebane’s position since June 2022, highlighted the strain on the institution’s budget caused by the costs of covering Mkhwebane’s legal funding in the parliamentary impeachment inquiry against her.
She said during the period, the institution adopted an inward-looking stance on the circumstances surrounding the increasing costs related to litigious responses by state institutions to public protector investigations and reports.
“These costs have been crippling the institution with legal fees and legal costs and effectively undermining the role of the public protector as well as the values of a proper and effective public administration as envisaged in section 195 of the Constitution.
“The legal costs, as well as adverse cost orders from historical litigation and the legal costs of the S194 enquiry, exacerbated the financial pressures and budgetary constraints that have been a fiscal reality for the institution for quite some time,” said Gcaleka.
She said the institutional transformation journey she envisioned when she took over as acting public protector was impacted by the limited resources of the office.
“However, I acknowledge the support of the Department of Justice, that provided additional funding to enable us to meet some of the unplanned financial commitments that arose from the parliamentary Section 194 Enquiry. The challenge experienced was the late transfer of these funds, which reflected a significant amount of accumulated surplus.
“This has the effect of creating an impression that the institution could not utilise its allocated funds, when in fact, a true reflection of the situation would illustrate that it was impossible to utilise the additional funds as they were only made available to us towards the end of the financial year.”
Gcaleka said despite several challenges the PPSA has faced, the institution attained 86% overall achievement, maintaining the previous year’s performance.
“I must mention that the investigations by the institution far exceeded those that we have announced through public statements.”
The annual report notes that Mkhwebane is entitled to a taxable lump sum gratuity on vacation of her office.
While it does not state the figure, it says the gratuity calculation is based on the basic salary and period of office.
Mkhwebane’s term ends mid-October. The National Assembly will decide on September 11 whether she should be removed from office before her term ends.
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